PublishedSeptember 29, 2014

Patent Quality Matters: Having a Patent Doesn’t Make a Person an Inventor

One recurring theme coming from the anti-patent reform folks has been the idea that we shouldn’t prevent or limit inventors from getting the rewards they deserve. Take this tweet for example:

It’s tough to argue that someone who invents something valuable should be forced to watch helplessly as others profit from it.

Which is why no one is actually arguing that.

The actual dispute, which keeps getting buried by “save the inventor” rhetoric, is about what the word “inventor” means. Is it any person who receives a patent from the [define term=”USPTO”]? That is, just because you have an issued patent, are you automatically entitled to a share of any wealth created by the invention your patent covers?

That’s certainly what it seems like the anti-patent reformers would have us believe. They want to use a patent as a proxy for an invention. In other words, if someone receives a patent from the USPTO with claims that (arguably) cover a thing, then he invented that thing. And if you own such a patent, you are therefore entitled to money from everyone who uses, manufactures, or sells the thing. According to this line of thought, any challenges to a patent are just attempts by companies to get away with using someone’s invention without paying.

Now if patents were nearly always correctly issued, I would probably agree. But as I wrote the other day, that’s not even close to being the case. A huge percentage of issued patents, possibly even a majority, are actually invalid. If there’s a better than 50–50 chance that a patent is invalid, it’s not unreasonable for an accused infringer to try to invalidate it. Patent quality matters.

If you show up with a lottery ticket claiming to have won the jackpot, you expect that officials will check that ticket to make sure it’s valid.

So why should we assume that someone who shows up with a patent is the actual inventor of what he claims? Given how many patents are actually invalid, we should be at least as skeptical as we are of winning lottery tickets.

The fight for patent reform isn’t about trying to trample on inventors’ rights. It’s about trying to deal with the reality of thousands of bad patents and trying to prevent people from collecting money (and hindering innovation) based on patents that should never have issued.

Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

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